Digital Whispers: Encrypted Communications and Law Enforcement

Much of the media attention addressing encryption for smartphones has been primarily centered on Apple and Google. Both Android and iOS operating systems offer whole device encryption, where a user’s phone data cannot be accessed without a code. Apple was the target of a lawsuit brought by the FBI who was requesting Apple unlock the cellphone of San Bernadino shooter, Syed Farook (see previous WJLTA Blog posts here and here). This case typifies an ongoing public debate about the balance the law should strike between privacy and security. But whole device encryption is just the tip of the iceberg.

Another important facet of encryption technology is specialized software that provides encrypted communication using a process called end-to-end encryption. WhatsApp is one such messaging application, allowing users to send messages, photos, and even make telephone calls. Facebook acquired the company in a deal announced in February, 2015 for nearly $19 billion. It offers encrypted communication between a range of different devices. Like full drive encryption, the readable data that are stored on the device are incomprehensible to third parties without the proper passcode. Even if law enforcement had access to the device, they would be unable to ascertain the contents of the communications.

On May 2, a judge in Brazil ordered the suspension of the messaging service in the country. Though the legal rationale was not given due to the confidential nature of the case, the case is known to involve drug trafficking and organized crime. An appeals court overruled the order the same day, though people lost access to the service for hours. The move was largely unpopular with users—there are an estimated 100 million Brazilians who use the service. A Brazilian legislator has since proposed a bill to protect the service.

Moreover, the efficacy of an order aimed at stopping encrypted communications is doubtful, as apps offering such services are in no way limited to WhatsApp. Other apps providing encrypted communications include Telegram, Threema, Signal, and Surespot, to name just a few. Many include both text and call features. Controlling all of these companies would be a difficult feat.

The debate around encryption is often couched as balancing individual data security against law enforcement investigative power. But the easy availability of end to end encrypted communication begs the question whether the larger piece of the debate is somewhat missing the point. A user concerned about security, no matter how innocuous or sinister the motive, can still effect encrypted communication—which may be nearly impossible for a government to access. If the regulation of the sector will not stop the determined user from obstructing law enforcement, the burden on privacy and data security for the greater, law-abiding public may be seen as unjustified.

Thus, the debate in this country continues to escalate. Law enforcement officials have offered a potential solution: have Apple and Google block these apps from purchase at their respective stores. However, the dedicated privacy enthusiast can still work around this restriction. Perhaps this means that secured conversations are a new reality law enforcement will have to learn to live with?